STATE OF TRIPURA Vs. MD ALFU MIAH

JUDGEMENT

(1.) THIS criminal appeal under Section 378 of Cr.P.C. is directed against the judgment and order of acquittal of the respondent-Alfu Miah, from the charges framed against him under Section 376 r/w Section 511 of IPC, vide judgment dated 20.06.2005, in connection with Sessions Trial No. ST (WT/A)/2004, passed by learned Assistant Sessions Judge (Court No.1), West Tripura, Agartala.

(2.) PROSECUTION case is that accused-respondent, Alfu Miah(hereafter mentioned as 'accused'), a neighbour of informant, Abdul Haque(PW.1)(father of the victim girl), was engaged as a private tutor of the prosecutrix(name kept withheld), a minor girl, aged about 9/10 years, a student of Class IV, and the accused used to impart tuition normally in the house of the informant at evening time. Abdul Haque, being fell ill, was hospitalized at G.B. Hospital, Agartala, w.e.f. 01.04.2004 and his wife Mafia Khatun(PW.4) was with him in the hospital to take his care, and their two sons and the daughter(prosecutrix) were at their home at village-Uttar Gajaria, under P.S. Bishalgarh. 2.1On 04.04.2004 in the evening, the accused came to the house of the informant and asked the prosecutrix to accompany him to his house for her tuition saying that he will not able to impart tuition to her on that day in her house, and that he will give her tuition in his house. Her brother Riaz Hussain, though initially objected but allowed the prosecutrix to go with the accused to his house for her private tuition, and accordingly she accompanied the accused to his house and the accused imparted tuition to her. After her tuition was over at about 8.00/9.00 pm, the prosecutrix was coming out from the hut of the accused and at that time accused caught her, taken away her books from her hand and laid her on a cot (locally called 'Macha' made of bamboo), and thereafter, the accused put off her under pant, laid over her and tried to commit rape on her. At that moment, Rabindra Mallik(PW.2), a neighbour came to the house of the accused to search his son as to whether his son had been there or not to take his tuition, and he entered into the hut and found the prosecutrix lying on the cot and the accused, standing by the side of the cot. Seeing Rabindra Mallik, the accused left the prosecutrix and she returned to her house. 2.2The parents of the prosecutrix(PWs.1 and 4) returned home from G.B. Hospital in the evening of 05.04.2004 and the prosecutrix reported the incident to her parents. PW.1, father of the prosecutrix enquired about the matter from Rabindra Mallik(PW.2), who also narrated the fact to him. Mother of the accused requested PW.1 to settle the matter through local Panchayat but he did not agree. 2.3 Since Abdul Haque(PW.1) was ill and was not in a position to go to the police station, he wrote an FIR and sent the same to Officer the In-charge of Bishalgarh P.S. through his wife (PW.4), and accordingly, the Officer In-charge, Bishalgarh P.S. registered Bishalgarh P.S. Case No.31 of 2004 under Section 376 r/w Section 511 of IPC and one Sri Prasun Kanti Tripura, SI of Bishalgarh P.S. was entrusted the charge for investigation. Accordingly, on completion of investigation, the investigating police officer submitted charge sheet against the accused-Alfu Miah for commission of offence punishable under Sections 376/511 of IPC, and accordingly cognizance was taken and in due course, the case was transferred to the Court of learned Assistant Sessions Judge, Court No.1, West Tripura, Agartala for trial. 2.4 In course of trial, the following charges were framed against the accused to which he pleaded not guilty and claimed to be tried.

(3.) LEARNED amicus curiae, Mr. D.C. Roy has submitted that PW.2 in his cross-examination stated that he found the prosecutrix lying on the cot and she was wearing a frock, covering up to her knee and the accused was wearing a 'lungi'. PW.2 entered into the room suddenly without calling the accused, so, had there been any such attempt of committing rape by the accused, he would have found the accused and prosecutrix naked and the accused, lying on the victim, and therefore, the trial Court rightly held that the prosecution case as placed before the Court was doubtful. While the trial Court arrived at a decision of acquittal of the accused, the appellate Court may not interfere in the finding, since two possible inferences may be drawn that the accused might have committed the offence or might not have committed the offence. Learned counsel, therefore, prayed for sustaining the order of acquittal of the accused.